Michael McDowell (Dublin South East, Progressive Democrats)

I was called to the Bar in 1974 and practised in most courts, including the criminal courts and I knew my criminal law at the time. It was accepted among all barristers, all solicitors and all judges that the general rule was that mens rea was required, that is, that one had to know one was committing an offence. However, there were a number of exceptions but one classic exception was in regard to under-age sex. We proceeded from 1935 to 2006 on that assumption.

On occasion some people said it was unfair as a rule but it was generally accepted orthodoxy among the lawyers and the Judiciary. There was one judgment of the Court of Criminal Appeal which stated it was fair because it spared children being cross-examined. It was not some accident or whatever, it was understood to be the law. The only reason I mention it is that was what everybody thought to be the case until relatively recently. There is the Constitution, our deep constitutional values and mens rea, but we always said this was one exception to it. That was what we all understood the law to be until last year.

This leaves us in a position where, if we want to have a zone of absolute protection, we have to change the Constitution. The argument which I think was not dealt with until we were bringing the emergency legislation through the Dáil and Seanad last year was that if one allows a genuine mistake to creep into these cases inevitably it is made an issue in very many cases as to how the victim behaved and what demeanour the victim had. Once one goes down that road, it is not so much that it is outrageous that it should be a subject for debate in a court case, it is that victims will say they do not want to be part of this and parents will say they do not want their child to be part of this. They will not wish to proceed on the basis that they are not putting their child up to have his or her sexual experience thrown at him or her, whether he was drinking at the age of 16 or whether she was wearing a mini-skirt at the age of 15. They will not go down that road and will make no complaints whatever.

Given this, the unintended consequence of allowing this to become a litigable issue in these cases is that, like the frost on a field, the complaints will disappear. The Director of Public Prosecutions warned us of this very strongly in the All-Party Committee on the Constitution as did the child psychiatrist who gave evidence. They had no doubt that once we introduced that as a legitimate defence in these cases, many parents and children would say it was not worth the candle and would not make a complaint.

That is the raw practical effect of the CC judgment. As legislators we have to ask ourselves and the people will have to ask themselves, as the ultimate legislators, whether they want to put things back to the way they were or to continue on with the system as it is since the CC judgment. I am not concerned about answering that question today but the All Party Committee on the Constitution unanimously came to the view that it wished to return to the old system. That is set out in its report. It is not an ill-considered view. The members of the committee spent months coming to this conclusion and took expert testimony on it. They said the whole effect of allowing this to come back as an issue in these cases is that there will be far fewer cases because people will be nervous of exposing their children in this kind of cross-examination.

One can imagine a young girl of 15 or 16 years of age who has false evidence of age, in the form of her sister's passport, in her pocket, and is frequenting a night club, pub or whatever and wearing lipstick, a short skirt and looking very attractive, who will be put through the mill by a senior counsel acting for a man who either did not fall for it or did not care or, alternatively, did fall for it in terms of his guilt or innocence. The phrase used by the Law Reform Commission, which is so graphic, is that she will be converted from being a witness to an exhibit in the case. The case will be, what did she look like? The other question will be, what did she look like two or three years ago when the incident happened. People would not want to proceed in such circumstances and will not subject themselves to such questioning. This is an issue.

The same would apply to young men if they were the subject of this kind of law. It is not a matter on which there is some blindingly obvious principle. On the one hand one will say genuine mistakes should be an issue in every case. On the other hand, if it is allowed in, one knows what the effect will be on the protection of children. Children will be converted from witnesses into exhibits and will be dissected in court and the case will be counterproductive. That is an issue for another day.

However, I make the point that it is not self-evident to me that the system was so bad until the CC judgment. I believe our law was better prior to that judgment than since. Child psychiatrists and the DPP came before the committee and said that was their view also. Sometimes we take our law from the Supreme Court but the people have to decide where the pendulum should come to rest. That is the issue.